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Court of Appeal:
Name-Clearing Bid by Woman Fired by UCLA Is Nonjusticiable
Panel, in 2-1 Decision, Says Favorable Finding on Issue by Superior Court Judge Provides Complete Relief
By a MetNews Staff Writer
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Above is a promotional graphic for the Las Vegas show, Absinthe. The director of UCLA’s Spirit Squad was fired over arranging for students to attend a performance. The Court of Appeal for this district, in a 2-1 decision, held Monday that because a Los Angeles Superior Court judge found that substantial evidence does not support an administrative determination that the plaintiff violated the university’s Sexual Harassment and Sexual Violence Policy, there remains no justiciable controversy. |
A woman who was fired after 19 years as director of UCLA’s “spirit squad” largely because she authorized attendance by six dance team members at what turned out to be a raunchy show at Las Vegas’s Caesar’s Palace has lost a name-clearing bid in the Court of Appeal for this district, with the majority of Div. Five holding that the controversy is nonjusticiable because the plaintiff obtained an exonerating finding in the Los Angeles Superior Court.
Then-Judge Mary H. Strobel, now an arbitrator/mediator, on Feb. 2, 2023, while denying Mollie Vehling’s petition for a writ of administrative mandamus—which the jurist construed as a challenge to the decision to terminate employment—specified that substantial evidence does not support the primary ground for the firing. That ground, with others being uncontested on appeal, was that Vehling purportedly violated the University of California Sexual Harassment and Sexual Violence (“SVSH”) Policy by giving the green-light to the presence of students, all over the age of 18, at the show, “Absinthe.”
“There is no full nudity in the ‘Absinthe’ show,” Vehling’s lawyers on appeal noted, but acknowledged that “some of the acts are risqué.” They insisted that, from a perusal of the Caesar’s Palace website prior to approving attendace, “Ms. Vehling believed the show to be a ‘Cirque to Soleil’ type of event.”
The performance took place on Thanksgiving Night in 2018. The members of the dance team were in Las Vegas in connection with basketball games there.
They were in the company of UCLA alumnus and major donor Alan Robbins, a state senator from 1974-91 who in 1992 pled guilty to federal racketeering and income tax evasion charges and spent 18 months of a five-year sentence in prison. One of the unchallenged bases for her firing was that Vehling disobeyed an order, issued after attendance by students at the show in Las Vegas, not to allow Spirit Squad members to have any contact with Robbins, who had paid for the tickets and had issued an invitation to the event.
Broader Relief Sought
Vehling wanted more than a finding, incidental to the judgment, that substantial evidence is lacking as to her having violated the sexual harassment policy; she sought an invalidation of the determination by the UCLA Title IX Office that she engaged in proscribed activity. Title IX of the Education Amendments of 1972 bars sex-based discrimination in any educational institution receiving federal aid. school or any other education program that receives funding from the federal government.
Mark M. Hathaway and Jenna E. Parker of the downtown Los Angeles law firm of Hathaway Parker Inc., which is prominent in representing plaintiffs in actions against universities, said in the appellant’s opening brief:
“…Ms. Vehling, through her Petition for Writ of Mandate and written briefs, expressly sought review of the decision that she sexually harassed several UCLA Spirit Squad members in Las Vegas, when she was in San Diego….The Title IX decision cost Ms. Vehling her reputation and has impeded her employment at any other educational institution and continues to have harmful effects on her to this day. Ms. Vehling respectfully asks this Court to reverse the trial court judgment denying her writ petition and grant her petition to set aside the decision by Respondents that Ms. Vehling is responsible for violating the SVSH Policy and the sexual harassment of several UCLA Spirit Squad members.”
They argued:
“No reasonable person could conclude that any conduct by Ms. Vehling in scheduling the Spirit Squad travel for the Las Vegas trip, including the invitation extended by UCLA donor Alan Robbins for Spirit Squad members to attend “Absinthe” at Caesar’s Palace, meets the definition of unwelcome non-verbal conduct of a sexual nature and ‘Sexual Harassment’ under the SVSH Policy.”
The lawyers asked that the appeals court “set aside and vacate the Title IX findings and decisions against Ms. Vehling.”
Split Decision
Acting Presiding Justice Lamar Baker wrote for the majority in proclaiming that Vehling won what she sought and is entitled to no more. Justice Dorothy C. Kim joined with Baker and Justice Carl H. Moor dissented.
Baker said:
“As framed, Vehling’s appeal is not justiciable because she is not aggrieved….Vehling claims to want a judicial determination that clears her from having been found to have committed sexual harassment and a violation of the Policy, but she already has it: the trial court’s ruling, which is final insofar as it finds insufficient evidence she violated the Policy (because UCLA has taken no appeal from the court’s order). Because Vehling does not otherwise contest her termination, she is not aggrieved by the trial court’s order and we shall dismiss her appeal.”
Moor’s dissent
Citing the California Supreme Court’s 2002 decision in Katzberg v. Regents of the University of California, Moor wrote:
“When a public employee is terminated based on charges that might seriously damage the employee’s standing in the community or impose a stigma that impairs the freedom to pursue other employment, the employee is entitled to a ‘name-clearing hearing.’ ”
He noted:
“This due process right entitles the employee to a name-clearing hearing only, not reinstatement.”
The dissenter continued:
“In my view of the record, appellant Mollie Vehling consistently sought to set aside her employer’s finding that she violated the sexual violence and sexual harassment policy…because of adverse consequences from the stigmatizing finding. Vehling was required to exhaust her administrative remedies and file a writ petition for review of the termination decision containing the stigmatizing finding. She challenged the finding itself, regardless of the impact on the termination decision, in addition to challenging the termination decision that incorporated the finding. Therefore, the issue of a name-clearing hearing has not been forfeited or waived.
“The trial court correctly ruled that Vehling did not violate the sexual harassment policy, but then denied Vehling’s petition in its entirety. This was error. The appropriate disposition and remedy in the trial court would have been: (1) to expressly grant the portion of the petition challenging the finding that Vehling violated the sexual harassment policy and deny the remainder of the petition challenging the termination decision, and (2) to direct the Regents to remove the stigmatizing information from Vehling’s personnel file.”
Earlier Indication
The outcome was surprising in light of a letter Div. Five sent to counsel on Feb. 28 which indicated recognition of a reputational interest Vehling had, distinct from her employment. The letter, seeking additional briefing, says, in part:
“Under California law, when an at-will public employee’s termination is accompanied by charges of serious misconduct that may impose a stigma foreclosing the opportunity to obtain other employment, the employee is entitled to a nameclearing hearing based on the employee’s due process liberty interest….In other words, an at-will public employee may obtain judicial review of a finding of serious misconduct supporting termination, even though clearing the person’s name will not restore the job….In this case, it appears the employer’s framework for a Title IX investigation permits an employee to challenge the finding that she violated the sexual harassment policy within the context of challenging the termination decision….
“In light of the foregoing, the parties may submit short letter briefs…addressing the law governing a name-clearing hearing, including whether the law applies in this case to permit judicial review of the finding that Vehling violated the sexual harassment policy, which was incorporated in the employer’s termination decision.”
Hathaway and Parker responded:
“Ms. Vehling has a protected interest. She does not assert a property interest in continued employment, as she was an at-will employee. However, her termination was based on a formal finding that she violated the University of California’s Sexual Violence and Sexual Harassment Policy, a charge that carries significant reputational harm and effectively forecloses future employment opportunities in higher education.”
They added, citing Katzberg:
“Under California law, an at-will public employee is entitled to judicial review of a stigmatizing misconduct finding when it affects future employment….As the appellate court recognized in its request for supplemental briefing, the Title IX determination against Ms. Vehling was incorporated into her termination and carries a lasting stigma, triggering procedural due process protections.”
The case is Vehling v. Regents of the University of California, B331965.
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